Textbook Notes (363,237)
Canada (158,278)
LAW 122 (616)
Stan Benda (71)
Chapter 2


11 Pages
Unlock Document

Ryerson University
Law and Business
LAW 122
Stan Benda

LAW 122 - Chapter 2 Litigation is the system of resolving disputes in court. As successful business people realize, litigation is often a poor way to settle disputes. Amongst other things, it is usually expensive, often unpredictable, and frequently fatal to business relationships. The Litigation Process As a rule, however, it is a good idea to hire an expert to help out with more serious matters. Who Can Sue and Be Sued? In discussing who can sue and be sued, it is helpful to draw a distinction between people and organizations. As a rule, all adults are free to use the Canadian courts, whether or not they are Canadian citizens. The situation is somewhat more complicated with organizations. As a matter of law, a corporation is a type of person. A company may therefore sue or be sued. In contrast, unincorporated organizations, such as clubs and church groups, are not classified as leal persons. As a result, they normally cannot sue or be sued. Instead, it is necessary to sue the individual members of those organizations. Although trade unions are unincorporated organizations, they can sue and be sued directly. Special rules may also apply when the government is sued. Because of traditional rule that said that the Kind can do no wrong, the Crown could not be sued without its consent. The traditional rule has now been changed by legislation. The statutes are, however, complicated and they often introduce unusual restrictions. Class Actions Sometimes it makes little sense for people to individually sue, even if they have clearly suffered some sort of legal wrong. If so, there is a danger that the wrongdoer may profit from its own misconduct. (Think about the McDonald coffee example; lady with third degree burns + other people) A class action allows a single person, or a small group or people, to sue on behalf of a larger group of claimants. Class actions are becoming increasingly common in Canada. The primary attraction is obvious: they allow small individuals to take on large organizations. While it is difficult to find a lawyer to fight a large corporation for $75, it is much easier to find a law firm willing to take on a case that may be worth $150 million. The threat of a class action may also prevent a wrong from occurring in the first place. A company may not worry about thousands of claims worth a few dollars each, but it will worry about a single claim worth $150 million. Finally, class actions may also save society money. If there are thousands of claims, and each one is almost identical, it is cheaper to deal with them all at once. Seven provinces have legislation dealing with class actions. Although the details vary from place to place, the basic ideas are the same. Common Issues: There must be common issues amongst the various members of the class. For instance, they may all be women who received defective breast implants from the same manufacturer; it is not necessary, however, for every claim to be identical. Even if the court allows a class action to occur, it may set up a process to deal with the special circumstances that affect some claimants. Representative Plaintiff: The plaintiff must qualify as a representative plaintiff. He or she must demonstrate a workable plan for fairly representing the interests of the class members. That will not be true, for instance, if the plaintiff wants the court to reply on a rule that will help some claimants, while hurting others. Notifications: A representative plaintiff must also have a workable plan for notifying potential class members. It is not unusual, for instance, to see class action notices in newspapers or magazines. In most cases, a class action automatically includes every claimant who has not expressly opted out within a certain length of time and every member of that class will be bound by the decision that the court gives at the end of the trail. People have not opted out cannot bring separate actions on their own. Preferable Procedure: The court must be convinced that a class action is the preferable procedure for dealing with the claims. It will, for instance, consider whether a class action will become too complicated, and whether there are enough similarities between the class members. Certification: Assuming that the previous requirements are met, the action will be certified. Certification represents the courts decision to allow the various claims to be joined together and to proceed as a class action. It is the most important step in the whole process. It demonstrates that the court believes that there is a serious and genuine claim to be considered. Legal Representation Self-Representation You have the right to represent yourself. You can go into court and argue your case before a judge, even if you are not a lawyer. A great deal of truth in the old saying: if you represent yourself, you have a fool for a lawyer and a fool for a client. Litigation is often very complicated. While it is expensive to hire a lawyer, it may be far more expensive in the long run to lose a lawsuit because of your own lack of experience. Lawyers There are advantages to hiring a lawyer; hiring a lawyer obviously does not guarantee success, but it does provide you with competent help and it may increase you likelihood of success. Each province and territory has legislation to deal with the legal profession. That legislation restricts the practice of law to people who have met certainrequirements. A person cannot act as a lawyer until he or she has graduated from law school, completed an apprentice period known as a period of articles, and passed the bar by successfully writing a number of examinations. The legislation also establishes a body, usually called the Law Society, to regulate the profession. The Law Society imposes codes of conduct and punishes members who act improperly. For instance, a lawyer who misleads a client may be fined, suspended, or disbarred. Law societies also require every lawyer to hold professional liability insurance. If your lawyer acts carelessly, and you suffer a loss as a result, you may sue for professional negligence. The lawyer, however, may not have enough to pay for that loss. Professional liability insurance allows you to receive compensation from the lawyers insurance company. Law societies also create assurance funds, which provide compensation to people who have been hurt by dishonest lawyers. Conversations with your lawyer are generally confidential and privileged. That means that your lawyer cannot share your information with anyone without your consent and that your discussions cannot be used against you in the court. Paralegals A paralegal is a person who is not a lawyer, but who provides legal advice and services. Paralegals are an important part of the Canadian legal system. It is occasio
More Less

Related notes for LAW 122

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.